Editor's note:

Dr Borja García joined the School of Sport, Health and Exercise Sciences at Loughbourough University in January 2009 as a Lecturer in Sport Management and Policy. He holds a PhD in Politics, International Relations and European Studies from Loughborough University (United Kingdom), where he completed his thesis titled ‘The European Union and the Governance of Football: A game of levels and agendas’.

In this leafy and relatively mild autumn, we are celebrating two important anniversaries. Recently, we just passed ‘Back to the Future day’, marking the arrival of Marty McFly to 2015. In a few weeks, we will be commemorating the 20th anniversary of the Bosman ruling. Difficult to decide which one of the two is more important. As we move well into the 21st century’s second decade, these two dates should mark a moment to consider innovation. They are perhaps occasions to take stock and reflect how much sport has evolved to reach this new future… or not.

When Marty McFly ‘landed’ on October 21st 2015, at 4.29 PM, he found a whole new world. Flying skateboards, holograms, massive jumbo screens… There was not much reference to sport governance in Back to the Future, although in the vein of the rest of the film, one would anticipate a modern, innovative and decidedly better sporting world. However, if Marty McFly, coming from the 1980s or 1990s, had arrived into the real October 21^st 2015 and looked at the present state of sport governance, he may have thought his De Lorean was not working properly! Twenty years on from Bosman, and more than a decade since major scandals that were supposed to change the landscape of sport (so we were told back then), a familiar feeling of déjà-vu emerges when reading the sport news nowadays.

The late 1980s and 1990s were characterised by legal insecurity, scandals and transformation in the governance of sport. There were legal challenges to the legitimacy of governing bodies. Bosman was just one of them, but on the back of the ruling the European Commission was inundated with questions related to the application of EU law to the rules of sport governing bodies. Those were also days of major public opinion upheaval against the institutionalised doping or the mismanagement of the IOC.

Fast forward to 2015 and we find ourselves in a very similar situation! After a period of relative calm, legal challenges from stakeholders against rules and regulations of governing bodies have flourished everywhere. Dutch skaters against ISU, Mr. Striani against UEFA, FIFPro against the international transfer system, the Spanish and Portuguese leagues against FIFA... just to name a few. Moreover, it seems as if doping and corruption never left us. It was cycling back then, and Russian athletics now. It was the Olympics and Salt Lake City in the 1990s, football, Russia and Qatar now. It seems not much progress has been achieved in 20 years.

Why is that? One of the reasons is that, despite some changes and mild modernisation, the governance structures are still very similar. No flying skateboards around FIFA or the IOC, I am afraid. Sport continues to be regulated by international federations trying to keep their place at the top of a pyramid that, however, is no longer there because it has given place to a much more complex network. The transformation from vertical governance to horizontal structures, that caused many problems in the public sector as described by Rod Rhodes[1] (among others), has not been correctly addressed in sport.

As Jack Anderson has correctly pointed out, perhaps one of the problems is that the current political governance structures of sport are not fit for purpose. They lack real separation of powers. For example, when the Spanish athlete (now a senator!) Marta Domínguez is allegedly accused of doping due to irregularities in her blood passport, WADA sends the dossier to the Spanish Athletics Federation, in which Domínguez was a vice-president for a few years, serving under the current president (who has been in charge since 1989, so probably Marty McFly knows him well!). Can the disciplinary committees of such a body be really independent and be expected to pass a clear and decisive judgment? Of course, they cannot and have not done so!

But the questions are perhaps more systemic. Are international sport federations really fit for the purpose of modern sport? The new reality of sport is one where the commercial dimension is increasingly divorcing from the coveted grassroots or sport-for-all Holy Grail. ISFs, and most public sport policies, are still attempting to house these two different realities under one common roof. Questions need to be asked as to whether this confusion des genres is even possible. There was a time in which the European Commission suggested that international federations had to separate their regulatory and commercial roles. But not much has been done in that respect since the Formula 1 case. Perhaps it should be accepted that elite and professional sport needs a new approach. If ISFs are serious, they need to start putting in place much more modern management and governance structures. Executive committees need to stop being ‘representative’ of the stakeholders, turning to be ‘skills based’. They need, of course, to be much more age, race and gender diverse. Independent directors need to be fully incorporated to councils, boards and federations’ EXCOs. Standing committees need to be more independent and need to have targets… This is nothing new, but it reads as a revolution in the world of international sport.

Given the governance failures of sport, it is often questioned whether public authorities could/should/ought to regulate or bring sport to account. Here, it seems fair to say that following the political ‘backlash’ of Bosman, aptly articulated by some sport bodies, politicians have erred on the cautious side. The idea that the EU “was trying to kill club football in Europe”, as put forward by Lennart Johanson on 16 December 1995 was powerful enough to discourage the EU, and other public authorities for that matter, to regulate sport. The reality is that, to date, perhaps the EU is the only public body that has managed to bring to account international sport, even in a limited fashion, as I have argued in a recent article[2]. The mainstreaming of the autonomy and specificity of sport into EU policies, however, has deterred EU institutions from pursuing a much more proactive approach in the control and regulation of sport.

After Bosman, there was a period in which both sport and EU law found each other. There were negotiations and some changes in both sides. There were even positive noises coming from different social dialogue committees. The calm, however, has been broken abruptly. And we have woken up back to the future, as if 1995 had never passed. ASSER’s very own Antoine Duval, and some authors such as Arnout Geeraert have recently argued that the EU should be much stronger in its application of EU law to sport. The problem is: can they really do it? In an increasingly Eurosceptic environment amongst the peoples of Europe, can the EU really risk trying to have a go at sport? It can be argued, that sport as an area of ‘soft politics’ and popular culture may give the EU some of its lost legitimacy back. But I am not so sure. In a recent survey, part of the FREE Project, we asked Europeans in nine countries whether they trusted the EU (amongst other bodies) to regulate the governance of football. The answer was clear: No, they do not. Of the nine different organisations offered in the survey, the EU was the third least trusted body, only above the media and national governments. In the survey, only 40% of the Europeans in the nine countries polled trusted the EU in this respect. This goes down to 21% when the survey is restricted to core football fans, not the general public. In other words, Europeans do not trust the EU, nor national governments to improve the governance of football. So, if the EU tries to have a stronger position in the application of European law and policies to sport, it may well backfire.

Normally, I have refrained from such a normative approach to governance. As a political scientist, I prefer to analyse what actors do, rather than to tell them, what to do. However, it is clear to me that what they have done so far is not working. Twenty years on from Bosman, and a visit of Marty McFly after, the ‘future’ of international sport governance looks conspicuously similar to the past. And it is not good. We need a solution that brings us to the future, to a real future where the past is finally put to rest.

[1] Rhodes, RAW. (1997) Understanding governance: policy networks, governance, reflexivity and accountability, Maidenhead: Open University Press.

[2] Meier, HE and García, B. (2015) ‘Protecting private transnational authority against public intervention: The power of FIFA over national governments’. Public Administration, Early view, September 2015, doi: 10.1111/padm.12208.

Editor's note: This is the (belated) fifth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio. The other acts are available at:

• Act I: Saved by the Osaka Déjà-Vu
• Act II: On being implicated 
• Act III: On being sufficiently tested
• Act IV: On Bringing a sport into disrepute

Act V: Saving the last (Russian) woman standing: The Klishina miracle 

Darya Klishina is now an Olympic celebrity. She will enter the history books not because she won a gold medal or beat a world record. Instead, her idiosyncrasy lies in her nationality: she was the sole Russian athlete authorized to stand in the athletics competitions at the Rio Olympics. And yet, a few days before the start of the long jumping contest in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina appealed the decision to the CAS ad hoc Division and, as all of you well-informed sports lawyers will know, she was allowed to compete at the Olympics and finished at a decent ninth place of the long jump finals.

Two important questions are raised by this case:

• Why did the IAAF changed its mind and decide to retract Klishina’s authorization to participate?
• Why did the CAS overturn this decision?

A.    The IAAF’s second thoughts over the implication of Klishina

What happened between 9 July, when Klishina was first green lighted by the IAAF Doping Review Board (DRB) and 10 August when the DRB revoked its previous decision to let her compete? Basically, the publication of the McLaren Report, and especially evidence showing “that the Applicant had been directly affected and tainted by the State-organised doping scheme described in the IP Report”.[1] More concretely, according to the Report, Klishina was affected in the following three ways:

      i.   “a sample collected on 26 February 2014, yielding a T/E ratio of 8.5, had been subject to a "SAVE" order by the Ministry of Sport on 3 March 2014;

      ii.   a sample collected on 17 October 2014 and subsequently seized by WADA December 2014 was found to bear marks and scratches consistent with the removal of the cap and contained urine from the Applicant but also from another female athlete; and

      iii.  a sample collected on the occasion of the 2013 IAAF World Championships in Moscow was also found to bear marks and scratches consistent with the removal of the cap.”[2]

In its original decision, the DRB had reserved its right “to reconsider the Applicant’s case should information ever be brought to its attention (including but not limited to as a result of the current investigation being conducted by Professor McLaren on behalf of WADA) that the Doping Review Board considers is such as to undermine the basis upon which the application was accepted”.[3] Thus, unsurprisingly, the CAS acknowledged that the DRB had the competence to reconsider the eligibility granted to the athlete. Nonetheless, surprisingly, it found that such reconsideration was not legitimate in light of the new information gathered.

B.    The surprising decision of CAS to let Klishina jump

Klishina won in front of the CAS. From the outset this is a surprising decision, since she was at least as implicated in the IP Report as numerous other Russian athletes who were barred from entering the Games.[4] Indeed, she had clearly profited from being “saved” by the Russian Ministry of Sport. So why on earth would the CAS decide to let her jump?

This decision is intimately linked with the legal basis of the original decision of the DRB. Despite the repeated view of the IOC that the IAAF policy was stricter than its own,[5] the Klishina case demonstrates that this is not universally true in practice. The main point was that the IAAF’s DRB had recognized that since 1 January 2014, Klishina “had been subject to fully compliant drug testing in- and out-of-competition”[6] and therefore fulfilled the criteria enshrined in the IAAF Competition rule 22.1A(b). This was based on the following factual findings:

• “The fact that she had spent 632 days out of Russia, being 86.6% of her time, in the Relevant Period;
• She had relocated permanently to the United States in March 2014 and had been trained under a US coach since October 2013;
• She regularly competes in competitions on the international circuit;
• A total of 11 samples had been collected from the Applicant outside of Russia in the Relevant Period;
• 1 sample had been collected by the IAAF since June 2016 and sent for analysis by a laboratory outside of Russia.”[7]


The question is then whether the new information, indicating that Klishina was implicated and benefitted from the Russian doping scheme, recognized as valid by the Panel[8], could justify revisiting the first decision. In other words, could this new information lead to reconsidering the eligibility of Klishina under the regime of IAAF Competition rule 22.1A(b) on which the original decision was based? To assess this, the Panel starts by pointing out that the rule “is not the same as the decision of the IOC Executive Board made after the publication of the IP Report. (…) As the parties agreed, the IOC Executive Board decision is not in evidence in this case and decisions of the Ad hoc Panel of the CAS for the Games of the XXXI Olympiad in Rio de Janeiro as to the application of, or the terms of, the IOC Executive Board decision are not applicable”.[9]

The CAS Panel insists that the IAAF’s DRB “was comfortably satisfied that during the Relevant Period the Applicant satisfied each of the criteria set out in the Rule for exceptional eligibility, notwithstanding the suspension of the National Federation”.[10] Furthermore, “in making its findings, the DRB was aware of, and took no account of, tests conducted in Russia and that it was cognisant of inadequacies in the system of testing in Russia, for which RusAF had been suspended”.[11] Those are decisive conclusions that will lead to the second decision being set aside. The CAS Panel was of the view “that the conclusion reached in the Second Decision, and the basis for that decision, are not in accordance with the Rule which was purportedly invoked”.[12] It is so, because “the further evidence considered by the DRB for the purposes of the Second Decision did not undermine its finding in the First Decision that the Applicant was eligible to compete by reason of her compliance with the Rule”.[13] This analysis leads to an unfair solution as the undisputed evidence points at Klishina profiting not once but on three occasions from the Russian doping scheme and still this evidence is not considered as relevant to reconsider the IAAF’s original decision to let her jump.

This decision is grounded on the following legal reasoning: the Panel considers that the “implication [of Klishina in the State-doping system] is not relevant to the application of criteria which, if fulfilled, mean that for the purposes of the Rule [22 IAAF], the Applicant is not affected or tainted by the failures of the National Federation”.[14] The CAS Panel is of the view that the IAAF Rule “provides for a mechanism or a basis by which an athlete is granted exceptional eligibility”.[15] And this “mechanism is fulfilment of the two criteria which, for this athlete, was established by the DRB in the First Decision”.[16] Thus, the “fact that the athlete was subjected to or the subject of drug testing that was not fully compliant during the Relevant Period does not derogate from the fact that she was, during the Relevant Period (that is, ‘a sufficiently long period’), subject to fully compliant drug testing in- and out-of- competition by reason of the fact that she was during that time training in and resident in the United States and not in Russia”.[17] Additionally, “there is no evidence to suggest that the testing that she was subject to was other than equivalent in quality to the testing to which her competitors were subject”.[18] In other words, “an athlete may have undergone non-compliant testing while concurrently being subject to fully compliant testing and still fulfil the second criterion”.[19] This is comforted by the fact “that the Rule is addressed to the suspension of any International Federation for failure to put in place an adequate system and the impact on the eligibility of the athlete” and the “criteria are directed to the establishment by an athlete that he or she is outside the country of his or her National Federation during the Relevant Period”.[20] Hence, it “is not addressed to the implication of an athlete in a defective system”.[21] Instead, “it states that an athlete is taken not to be affected or tainted by the action of the National Federation if he or she was subject to other, compliant systems outside of the country”.[22] In a nutshell, for the CAS Panel, the “relevant question is not whether the athlete was affected by the Russian System, or how, or whether she had knowledge of the way in which the system worked”.[23] No, the only question is “whether she fulfilled the criteria of the Rule”.[24] And the answer to that question is: she did early July; and she still does in August!

This case is disconcerting as it contradicts the line of cases regarding the implication of athletes in the IP Report discussed a few days ago. The CAS relied on the ambiguous wording of the IAAF provision to offer an escape route to Klishina. In doing so, it disregarded the spirit and objective of the provision, which was to provide a mechanism for athletes who were not personally tainted by the Russian doping scandal to participate in IAAF competitions. Yet, another aspect of the case is even more bizarre. Why did the IOC not block the eligibility of Klishina on the basis of paragraph 2 of the IOC Decision? She was undoubtedly implicated and benefited from the scheme. In fact, only one of the three sources of implication provided by McLaren should (and would) have been enough for the IOC Review Panel and the CAS arbitrator reviewing her eligibility to discard her from the Olympics. It did not happen, Zeus only knows why…

Epilogue

These five blogs have discussed the awards rendered by the CAS ad hoc Division in Rio involving Russian athletes wishing to compete at the Olympics. In general, the CAS has been willing, with few exceptions (Efimova and Klishina), to approve the ineligibility of Russian athletes. Rightfully, in my view, the CAS has supported the IFs that have opted for a strict approach in dealing with the eligibility of Russian athletes for the Rio Olympics. The CAS has also unsurprisingly rebutted the blunt rule of the IOC excluding Russian athletes who were previously sanctioned for doping. But, it has surprisingly let Klishina jump, in spite of all the factual elements pointing at her being implicated in, and having profited from, the Russian State-doping scheme. Overall, the CAS ad hoc Division has served its purpose as a review instance well, forcing the IFs and the IOC to properly justify their decisions and providing an avenue for the Russian athletes to be heard.

These cases also highlight the variety/plurality of responses to the Russian doping scandal and its impact on the eligibility of Russian athletes for the Rio Olympics. It seems that some IFs have taken WADA’s call for a strong response of the SGBs seriously. Unfortunately, and this is one of the negative consequences of the IOC’s decision to not decide, due to a lack of information, it is impossible to assess the different policies of the IFs which have not faced (due to their reluctance to act or else) a challenge of their eligibility decisions in front of the CAS ad hoc Division. In light of recent revelations concerning the International Swimming Federation (FINA) it is likely that a number of IFs decided to interpret narrowly the IOC criteria and waved through the overwhelming majority of Russian athletes without a proper check.

Finally, the awards show that CAS arbitrators would have been ready to condone a general exclusion of Russian athletes, with a narrow exception for those not tainted by the scandal or who could not benefit from the scheme because they were residing outside of the Russian Federation (this is very much the position adopted in the recent decision of the CAS in the dispute between the Russian Paralympic Committee and the International Paralympic Committee). The CAS recognized the seriousness of the situation and the collective responsibility of Russian sports organizations. It seemed also ready to follow up on this collective responsibility by endorsing collective sanctions that would most likely have been found compatible with the Russian athletes ‘natural rights’. Hence, ultimately, the IOC’s decision to let the Russian athletes compete at the Rio Olympics may have been politically unavoidable, but was certainly not legally mandated. I leave you to appreciate whether this decision is compatible with the IOC’s proclaimed fundamental values and its commitment to enforcing the World Anti-Doping Code. What is certain, however, is that the World Anti-Doping System needs an overhaul (for some reform proposals/directions see here) sooner rather than later.

[1] CAS OG 16/24 Darya Klishina v. IAAF, para. 2.12.

[2] Ibid.

[3] Ibid., para. 2.8.

[4] See Act II of this blog series.

[5] See CAS OG 16/13 Anastasia Karabelshikova and
Ivan Podshivalov v. 
World Rowing Federation (FISA)
and
International Olympic Committee (IOC), para. 7.14 and CAS OG 16/12 Ivan Balandin v. FISA & IOC, para. 7.22.

[6] CAS OG 16/24 Darya Klishina v. IAAF, para. 7.3.

[7] Ibid., para. 7.14.

[8] Ibid., paras 7.40-45.

[9] Ibid., para. 7.24.

[10] Ibid., para. 7.34.

[11] Ibid., para. 7.35.

[12] Ibid., para. 7.46.

[13] Ibid.

[14] Ibid., para. 7.56.

[15] Ibid.

[16] Ibid.

[17] Ibid., para. 7.57.

[18] Ibid.

[19] Ibid., para. 7.58.

[20] Ibid., para. 7.60.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.